THE LAWS 



\90 



RELATING TO 



THE PUBLIC RECORDS AND PUBLIC 
DOCUMENTS, 



OPINIONS OF THE ATTORNEYS-GENERAL. 



THSUED BY THE COMMISSIONER OF PUBLIC RECORDS. 





BOSTON : 

WEIGHT & POTTER PRINTING CO., STATE PRliN'lERS, 

18 Post Office Square. 

1909. 




Book I 



v, THE LAWS 



RELATING TO 



THE PUBLIC RECORDS AND PUBLIC 

DOCUMENTS, 



OPINIONS OF THE ATTOKNEYS-GENERAL. 



Issued by the Commissioner of Public Records. 




BOSTON: 

WEIGHT & POTTER PRINTING CO., STATE PRINTERS, 

18 Post Office Square. 

1909. 






Approved by 
The State Board op Publication. 



D. OF 0. 

NOV 






LAWS. 



Revised Laws, Chapter 35. 

OF THE PUBLIC RECORDS. 

Sections 1-4. — Commissioner of Public Records. 
Sections 5-23. — Public Records. 

COMMISSIONER OF PUBLIC RECORDS. 

Section 1. There shall be a commissioner of public records, Commissioner 

r ' of public 

who shall be appointed by the governor, with the advice and jf cor ig 8q 
consent of the council, for a term of three years, unless sooner 1892 > 333 > § *■ 
removed by the governor. 

Section 2. He shall receive from the commonwealth an Salary and 
annual salary of twenty-five hundred dollars, and he may expend 1892, 333, § 2. 
not more than twenty-five hundred dollars annually for such 
travelling, clerical and other necessary expenses as the governor 
and council may approve. 

Section 3. He shall take the necessary measures to put the Duties. 
records of the counties, cities, towns, churches, parishes or re- iS9s! 67. ' 
ligious societies in the custody and condition required by law 207.f ' ' 
and to secure their preservation, and for that purpose he may 
expend from the amount appropriated for expenses such amount 
as he considers necessary. 

Section 4. He shall annually, in January, make a report to Report, 
the general court, with any recommendations and suggestions 
as to such records. 

PUBLIC RECORDS. 

Section 5. In construing the provisions of this chapter and Definition of 

. public records. 

other statutes, the words "public records" shall, unless a con- i|97, 439, § 1. 
trary intention clearly appears, mean any written or printed amendment 
book or paper, any map or plan of the commonwealth or of any 23.) 
county, city or town which is the property thereof and in or on 
which any entry has been made or is required to be made by law, 
or which any officer or employee of the commonwealth or of a 
county, city or town has received or is required to receive for 
filing, and any book, paper, record or copy mentioned in the six 



Quality of 
paper for pub- 
lic records. 
1815, 73. 
R. S. 14, § 116. 
G. S. 29, § 1. 
P. S. 37, § 1. 
1891, 281. 
1897, 439, § 1. 



Standard 
record ink. 
1894, 378. 

1898, 510. 

1899, 354, 
§§ 2, 3. 



Prohibition. 
1894, 378. 

1898, 510. 

1899, 354, § 1. 



Certain appli- 
ances forbid- 
den. 
1899, 354, § 4. 



Penalty. 

1898, 510. 

1899, 354, § 5. 



Custody of 
records; clerk. 
1897, 439, 
§§ 2, 3. 



following sections. The word "record" shall, in this chapter, 
mean any written or printed book, paper, map or plan. 

Section 6. All matters of public record other than maps and 
plans shall be entered or recorded on paper made of linen rags 
and new cotton clippings, well sized with animal sizing and well 
finished, and preference shall be given to paper of American 
manufacture marked in water line with the name of the manu- 
facturer. 

Section 7. The commissioner shall from time to time adver- 
tise for proposals to furnish the several departments and offices 
of the commonwealth, and of the counties, cities or towns in 
which public records are kept, with ink of a standard, and upon 
conditions, established by him, at such periods and in such 
quantities as may be required, and he may make contracts 
therefor. The inks so furnished, before being accepted by him, 
shall be examined by a chemist designated by him and, if at 
any time any of said inks shall be found inferior to the estab- 
lished standard, the commissioner may cancel the contract for 
furnishing such ink. 

Section 8. Persons having the care or custody of public 
records in any department or office of the commonwealth, or of 
any county, city or town, shall not, except as provided in the 
following section, use or permit to be used upon any public 
record written by them or under their direction any ink except 
ink furnished by the commissioner. 

Section 9. Such persons shall not use or permit to be used 
upon such records any ribbon, pad or other device used for print- 
ing by typewriting machines, or any ink contained in such ribbon, 
pad or device, except such as has been approved by the com- 
missioner. If the commissioner finds that an article so approved 
is inferior to the standard established by him he shall cancel his 
approval. 

Section 10. Whoever violates the provisions of the two pre- 
ceding sections shall be punished by a fine of not more than 
fifty dollars. 

Section 11. Every board or commission in charge of a de- 
partment or office of the commonwealth or of a county, city or 
town, for which no clerk is otherwise provided by law, shall 
designate some person as clerk, who shall enter all its votes, 
orders and proceedings in books and shall have the custody of 



such books, and the board or commission shall designate an 
employee or employees who shall have the custody of the other 
public records of such board or commission. Every sole officer 
in charge of a department or office of the commonwealth or of a 
county, city or town who has any public records in such depart- 
ment or office shall have the custody thereof. 

Section 12. Every city or town clerk shall have the custody Custody of 
of all records of proprietors of towns, townships, plantations or records. 
common lands, if the towns, townships, plantations or common r. s.' 43' § 17. 
lands to which such records relate, or the larger part thereof, §§ 5,' 8. 

C S 2Q 

are within his city or town and the proprietors have ceased to §§' ri, 12. 
be a body politic. The secretary of the commonwealth, clerk of §§ 14, 15. 
the county commissioners and city or town clerks shall respec- 1892; 314! § 3. 

. 1897 439 I 3 

tively have the custody of all other public records of the com- 
monwealth or of the county, city or town of which he is clerk, if 
no other disposition of such records is made by law or ordinance, 
and shall certify copies thereof. 

Section 13. If a church, parish, religious society, monthly church 
meeting of the people called Friends or Quakers, or any similar 1892, 3i4, § 3. 

. 1897 439 5 3 

body of persons who have associated themselves together for the i898! 453'. 
purpose of holding religious meetings, shall cease for the term of 
two years to hold such meetings, the persons having the care of 
any records or registries of such body, or of any officers thereof, 
shall deliver all such records, except records essential to the con- 
trol of any property or trust funds belonging to such body, to the 
clerk of the city or town in which such body is situated and 
such clerk may certify copies thereof. If any such body, the 
records or registries of which, or of any officers of which, have 
been so delivered, shall resume meetings under its former name 
or shall be legally incorporated, either alone or with a similar 
body, the clerk of such city or town shall, upon demand in 
writing by a person duly authorized, deliver such records or 
registries to him if he shall in writing certify that to the best of 
his knowledge and belief said meetings are to be continued or 
such incorporation has been legally completed. The superior 
court shall have jurisdiction in equity to enforce the provisions 
of this section. 

Section 14. Every original paper belonging to the files of the Preservation 
commonwealth, or of any county, city or town, bearing date i894, P 3S6, 
earlier than the year eighteen hundred, every book of registry is97, 439, § 4. 



Copies of 
records. 
1857, 84, 
§§ 1, 2. 
G. S. 29, 
§§ 5, 6. 
1865, 265. 
1874, 162. 
P. S. 37, 
§§ 5, 6, 9. 
1887, 202, 
1897, 439, 



Preservation 
of worn 
records. 
1851, 161, 
§§ 2, 6. 
1857, 84, 
§§ 1,2. 
G. S. 29, 
§§ 2, 7,8. 
P. S. 37, 
§§ 2, 7, 8. 
1897, 439, 



[1 Op. A. G. 

484.] 



Records open 
for inspection. 
1857, 84, § 3. 
1851, 161, § 4. 
G. S. 29, § 10. 
P. S. 37, § 13. 
1897, 439, § 7. 



or record, every deed to the commonwealth or to any county, 
city or town, every report of an agent, officer or committee 
relative to bridges, highways, streets, town ways, sewers or other 
state, county or municipal interests or matters which are not 
required to be recorded in a book, and are not so recorded, 
shall be preserved and safely kept, and every other paper be- 
longing to such files shall be kept for seven years after the latest 
original entry therein or thereon, unless otherwise provided by 
law; and no such paper shall be destroyed without the written 
approval of the commissioner of public records. 

Section 15. County commissioners, city councils and select- 
men may cause copies of records of counties, cities or towns, of 
town proprietaries, of proprietors of plantations, townships or 
common lands, relative to land situated in their county, city or 
town or of easements relating thereto, to be made for their county, 
city or town, whether such records are within or without the 
commonwealth. City councils and selectmen may also cause 
copies to be made of the records of births, baptisms, marriages 
and deaths which are kept by a church or parish which is in 
their city or town. 

Section 16. Every person who has the custody of any public 
record books of a county, city or town shall, at its expense, cause 
them to be properly and substantially bound. He shall have any 
such books, which may have been left incomplete, made up and 
completed from the files and usual memoranda, so far as prac- 
ticable. He shall cause fair and legible copies to be seasonably 
made of any books which are worn, mutilated or are becoming 
illegible, and cause them to be repaired, rebound or renovated. 
He may cause any such books to be placed in the custody of the 
commissioner of public records, who may have them repaired, 
renovated or rebound at the expense of the county, city or town 
to which they belong. Whoever causes such books to be so com- 
pleted or copied shall attest them, and shall certify, under oath, 
that they have been made from such files and memoranda or are 
copies of the original books. Such books shall then have the 
force of the original records. 

Section 17. Every person who has the custody of any public 
records shall, at reasonable times, permit them to be inspected 
and examined by any person, under his supervision, and shall 
furnish copies thereof on the payment of a reasonable fee. In 



cities and towns such inspection and furnishing of copies may be 
regulated by ordinance or by-law. 

Section 18. Officers or boards in charge of a state depart- Fireproof 
ment, county commissioners, city councils and selectmen shall, 1811, 165. 
at the expense of the commonwealth, county, city or town, i85i', i6i, 
respectively, provide and maintain fireproof rooms, safes or i857,*97, § 1. 
vaults for the safe keeping of the public records of their depart- §§' 3, 4. 
ment, county, city or town, other than the records in the custody §§ 3,' 4. ' 
of teachers of the public schools, and shall furnish such rooms 
only with fittings of non-combustible materials. 

Section 19. All such records shall be kept in the rooms in Arrangement 
which they are ordinarily used, and so arranged that they can be ? e ference S 
conveniently examined and referred to. When not in use, they 
shall be kept in the fireproof rooms, vaults or safes provided for 
them. 

Section 20. Whoever is entitled by law to the custody of Custodian to 

^ > ^ demand 

public records shall demand the same from any person in whose records. 
possession they may be, and he shall forthwith deliver the same 
to him. 

Section 21. Whoever has the custody of any public records surrender of 
shall, upon the expiration of his term of office, employment or tiring officer 6 
authority, deliver over to his successor all such records which he 1897! 439,' § 11. 
is not authorized by law to retain, and shall make oath that he 
has so delivered them, according as they are the records of the 
commonwealth or of a county, city or town, before the secretary 
of the commonwealth, the clerk of the county commissioners 
or the city or town clerk, who shall, respectively, make a record of 
such oath. 

Section 22. Whoever unlawfully keeps in his possession any Penalties. 
public record or removes the same from the room in which it is §§ d 4,'5, 7,' 8. 
usually kept, or alters, defaces, mutilates or destroys any public g. S." 29,' § 13. 
record or violates any provision of this chapter shall, for each 1390, 392. 
offence, be punished by a fine of not less than ten nor more 
than five hundred dollars. A public officer who refuses or neg- 
lects to perform any duty required of him by this chapter shall, 
for each month of such neglect or refusal, be punished by a fine 
of not more than twenty dollars. 

Section 23. The provisions of this chapter shall not apply Limit of appii- 
to the records of the general court. [The provisions of sections Sapte?. 
five and seventeen of this chapter shall not apply to declarations, ' ' 



8 



Court rooms, 
rooms for 
records, etc., 
to be provided. 
1823, 141, § 4.. 
R. S. 83, § 54. 
G. S. 117, § 31. 
1872, 125. 
1876, 234, § 1. 
P. S. 156, § 42. 



Same subject. 
1876, 234, § 2. 
P. S. 156, § 43. 



affidavits and other papers filed by claimants in the office of the 

commissioner of state aid and pensions ; nor to any records kept 

by said commissioner for use for reference by the officials of his 

department.] 1 

Revised Laws, Chapter 162. 

Section 51. County commissioners shall provide and main- 
tain suitable rooms for the use of the probate courts, ample fire- 
proof rooms and suitable alcoves, cases, and boxes for the safe 
keeping of all records, files, papers, and documents which belong 
to the several registries of probate, and shall also provide all 
books which may be necessary for keeping the records, and all 
printed blanks and stationery which are used in probate pro- 
ceedings. 

Section 52. If in the opinion of a justice of the supreme 
judicial court the fireproof rooms provided under the preceding 
section are insufficient, he shall upon application of the judge or 
register of probate of the county, certify the need of additional 
accommodations to the county commissioners of such county, 
and they shall forthwith provide such additional fireproof rooms 
and other accommodations as may be necessary. 



Custody of 
certain public 
records of 
Norfolk 
county. 



Custody of 
certain public 
records. 



Certain per- 
sons to deliver 
records upon 
demand. 



Acts of 1902, Chapter 311. 

Section 1. All public records of the county of Norfolk prior 
to the year sixteen hundred and eighty-one which shall be found 
within the Commonwealth, except those now in the registry of 
deeds for the southern district of Essex county, shall be deposited 
in the office of the clerk of the courts in Essex county. 

Section 2. Any public records, except those mentioned in 
the foregoing section, deposited elsewhere than in the office in 
the county, city or town to which they respectively originally 
belonged, shall be kept in the custody of the person having the 
custody of similar records in such original county, city or town. 
But this section shall not apply to the records of the town of 
Adams deposited in North Adams, under the provisions of 
chapter one hundred and forty-three of the acts of the year 
eighteen hundred and seventy-eight. 

Section 3. Whoever under the provisions of this act is to be- 
come the custodian of any of the records mentioned in this act 
shall demand the same from any person in whose possession 



Amendment, chapter 177 of the Acts of 1903. 



9 

they may be, and such person shall forthwith deliver the same 
to him. 

Section 4. Whoever refuses or neglects to perform any duty Penalty. 
required of him by this act shall be punished by a fine of not 
more than twenty dollars. 



Stamping Pads in Public Records. 
Section 9 of chapter 35 of the Revised Laws has been amended, 
to authorize the use of stamping pads in public records, as 
follows : — 

Acts of 1908, Chapter 57. 

Section 9. Such persons shall not use or permit to be used 
upon such records any ribbon, pad or other device used for 
printing by typewriting machines, or stamping pad, or any ink 
contained in such ribbon, pad, device, or stamping pad, except 
such as has been approved by the commissioner. If the com- 
missioner finds that an article so approved is inferior to the 
standard established by him he shall cancel his approval. 



Public Documents. 
The following changes have been made in the laws regarding 
the books, reports and laws distributed by the Commonwealth 
to the cities and towns. 

Chapter 117 of the Acts of 1907 has been amended to read as 
follows : — 

Acts of 1908, Chapter 142. 

Section 1. Every city and town shall provide a suitable 
place, or places, to be approved by the commissioner of public 
records, for the preservation and convenient use of all books, 
reports and laws received from the commonwealth; and for 
every month's neglect so to do shall forfeit ten dollars. 

Section 2. Said books, reports and laws shall be in the 
custody or control of the city or town clerk, unless the city 
council or selectmen shall, by vote, designate some other officer, 
the town counsel or other person to have said custody or control 
either of all or part of the same. 



10 

Section 8 of chapter 9 of the Revised Laws has been amended 
by adding at the end of the first paragraph thereof the follow- 
ing:— 

Acts of 1908, Chapter 422. 

In case a city or town at any annual city or town election shall 
vote not to receive the series of public documents, and the com- 
missioner of public records shall report to the secretary of the 
commonwealth that in his opinion such city or town is unable 
to make suitable provision for the care and use of such docu- 
ments, he may discontinue sending them to such city or town. 



11 



OPINIONS. 



Boston, June 4, 1890. 

To His Excellency John Q. A. Brackett, Governor. 

Dear Sir: — I have the honor to reply to yours of the 2d instant, asking 
my opinion on the question, "Can city governments and selectmen erect 
brick vaults in the place of fireproof safes, under the provisions of chapter 
37, section 4, of the Public Statutes?" 

The language of the section is: "City governments and selectmen shall 
provide, at the expense of their respective cities and towns, fireproof safes 
of ample size for the preservation of books of record or registry, and other 
important documents or papers belonging to such cities and towns; and 
the clerk of each city and town shall keep in the safe so provided all such 
books, papers, and documents at all times except when they are wanted for 
use." 

A brick vault, properly constructed, in my opinion would be a fireproof 
safe. It is not necessary that the safe should be an iron safe. The provisions 
of the law would be answered if a properly constructed fireproof brick vault, 
or fireproof iron safe, should be provided. 

The law is that the "city government and the selectmen shall provide at 
the expense of their respective cities and towns." 

It is the duty of the city governments and the selectmen of towns to provide 
the fireproof safes, as the law provides, regardless of the question whether 
a city or town has or will refuse to appropriate money to pay for them. The 
expense of the safes would be a valid claim against the cities and towns, and 
the collection thereof from the cities and towns could be enforced by law. 
It would be their duty to raise and appropriate money to pay such expenses, 
and it may be, though of this I am not certain, that, after the expense had 
been incurred, an indictment under section 16 of said chapter would lie 
against a city or town for a refusal or neglect to perform such duty. The 
city government and selectmen of towns, I think, might be subject to in- 
dictment for a non-performance of their duties, and could also be by man- 
damus, or some other suitable process, compelled specifically to discharge 
their duties and provide the safes. 

Very respectfully yours, 

A. J. Waterman, 

A Horn ey -General. 



12 



Public Records. — Church Records. 

[Opinions Attorney-General, Vol. 1, p. 207.] 

The Commissioner of Public Records has no authority to require the records of existing 
churches, parishes, or religious societies to be kept with the same safety required in 
the case of city, county, or town records. 

I take pleasure in acknowledging your letter of February 6, asking my 
opinion as to whether, under St. 1892, c. 333, § 3, you have any authority to 
require that the records of existing churches, parishes, or religious societies 
shall be kept with the same safety required for county, city, or town records. 

It is your duty under the said act of 1892 "to take such action as may be 
necessary to put the public records of the counties, cities, towns, churches, 
parishes, or religious societies of the Commonwealth in the custody and 
condition contemplated by the various laws relating to said records, and to 
secure their preservation." 

The laws relating to the preservation, condition, and custody of the public 
records of the Commonwealth are embraced in Pub. Sts., c. 37, and the 
various amendments thereto. These acts, with the exception of Pub. Sts., 
c. 37, § 15, are all limited, as regards this question, to the custody and pres- 
ervation of the records of counties, towns, and cities. The only instance 
where legal provision is made for the preservation of the records of a church 
or religious society occurs in said section 15, which provides, in the case of a 
church or religious society ceasing to have a legal existence, and when the 
care of its records and registries is not otherwise provided for by law, that 
the person having possession of such records or registries shall deliver them 
to the clerk of the city or town in which said church or society was situated. 

In the case, therefore, of an existing church, parish, or religious society, 
there is no legal provision regulating the preservation of its records. And, 
although it may be true that in many cases the earliest records concerning 
the town in question are embraced within the records of some church, 
parish, or religious society, it cannot be said that this would make a record 
belonging to such a body the record of a town or city within the meaning of 
the words of the statutes. The words " records of the counties, cities, or 
towns," as used in the statutes, mean the records owned by such bodies, 
and cannot include the records concerning the towns in question, however 
valuable they may be from some historical point of view, which belong to 
another corporate body not included in the words "counties, cities, or 
towns." 

It is your duty, therefore, in the case of the records of churches, parishes, 
or religious societies of the Commonwealth, to see that such records shall 



13 

be kept in the custody and condition contemplated by the various laws 
relating to churches, parishes, or religious societies; and you cannot require 
the records of these bodies to be kept in the manner prescribed for counties, 
cities, or towns. If such a course be desirable, your only remedy is to secure 
adequate legislation. 

It might be claimed, under the authority of the words "and to secure their 
preservation/' in section 3 quoted above, that you were given the power in 
question. The clause is ambiguous, and it is a question whether it should 
not be read as meaning that you were to secure their preservation in the 
manner contemplated by the various laws relating to records. But, however 
this question may be answered, I do not think that this clause is sufficient 
to give you authority to require that the records of churches, parishes, or 
religious societies should be kept with the same safety required by the 
statutes in case of county, city, or town records. 



Public Records. — Town Documents. — Warrants for holding 

Town Meetings. 

[Opinions Attorney-General, Vol. 1, p. 325.] 

St. 1894, c. 356, requiring the preservation of certain town documents for several years 
only, does not apply to warrants for the holding of town meetings. Such warrants 
should be permanently preserved. 

Your letter of April 5 requests my opinion upon the question whether, 
under St. 1894, c. 356, town clerks are required to preserve warrants for 
town meetings longer than seven years. 

Section 1 provides that certain documents shall not be destroyed, to wit, 
(1) books of record or registry; (2) original papers dated earlier than the 
year 1800; (3) deeds; and (4) reports of "any town officer or committee of 
any county, city, or town relating to bridges, highways, streets, town ways, 
sewers, or other county or municipal interests or matters." It is obvious 
that town warrants are not included within the provisions of this section. 
Section 2 prohibits the destruction of any other paper belonging to the files 
of the town until after seven years. In answering your question literally, 
therefore, it is plain that under the provisions of this statute town warrants 
need not be kept longer than seven years. 

But I do not regard this statute as intended to be comprehensive of all 
the duties of the town officers relating to the preservation of documents. It 
prohibits the destruction of certain documents within seven years, and is not 
intended to require or permit such destruction, even at the end of seven years, 
if for any reason, they should be preserved. 



14 

The warrant for the town meeting, and the return of service of it, are es- 
sential to give validity to the proceedings of town meetings. If there is no 
warrant, or it is improperly or insufficiently served, the title of the officers 
chosen at the meeting may be directly, and in some cases, perhaps, collat- 
erally, impeached. Most proceedings become of little importance after the 
expiration of the year, but some may be questioned even after the expiration 
of seven years; as, for example, town by-laws or long time loans. In such 
cases, the warrant and its service may at any time become of vital impor- 
tance. It is evident, therefore, that the statute requiring preservation of 
town documents for seven years has no application to town meeting warrants; 
and that they should be permanently preserved. It may be said that the 
recording of the warrant, and of the return of service upon it, sufficiently 
preserves the evidence essential to show the validity of the meeting. There 
is no statute, however, requiring the clerk to record the warrant; and, 
although the record when made has been accepted by the courts as evidence 
of the contents of the warrant and the manner of its service (Commonwealth 
v. Sullivan et al., 165 Mass. 183), it is not entirely certain that if the question 
were directly raised the record of the clerk would be competent evidence of 
the contents of the warrant or of the service of it. 

It is undoubtedly the safer course for town clerks to follow the practice of 
private corporations in recording the call for the meeting with the proceed- 
ings of the meeting itself; but the warrant itself is, nevertheless, the best 
evidence, and should be preserved. 

Public Records. — Repair. — Expense. 

[Opinions Attorney-General, Vol. 1, p. 484.] 

St. 1897, c. 439, § 6, requires every person having the custody of the public records of a 
county, city, or town to keep them in repair, and such county, city, or town must 
bear the expense, whether it has appropriated money for that purpose or not. 

I have your letter of the 7th, inquiring whether, under St. 1897, c. 439, 
§ 6, any person having the custody of any public records can lawfully incur 
expense which a county, city, or town will be obliged to pay, unless an ap- 
propriation for the purpose has previously been made by the county, city, 
or town. 

The statute in question provides that "Every person having the custody 
of any public records of a county, city, or town, consisting of written or 
printed books, shall, at the expense of the county, city, or town, have all 
such books properly and substantially bound," etc. This statute makes the 
duty of the custodian imperative, whether an appropriation is made by the 



15 

county, city, or town, or not, and even if no such appropriation be made. 
He must obey the law. Failure to perform this duty by him is punishable 
under the provisions of section 12 of the same act. 

The liability of the county, city, or town for the expense so incurred does 
not arise from any act of the corporation itself, but exists by virtue of the 
statute provision. It is plainly the duty of the county, city, or town to ap- 
propriate money for the purpose specified in the act; but if it fails to perform 
its duty it does not thereby escape its liability therefor. 

Boston, August 1, 1906. 

Robert T. Swan, Esq., Commissioner of Public Records, 104 State House. 
Dear Sir: — In reply to your request for my opinion upon the following 
questions : — 

1. Would a commission created by an act of the Legislature to erect a 
building in which public records were to be kept, be required to provide 
fireproof rooms, safes, or vaults for such records unless so instructed by 
said act? 

2. Would a commission or committee empowered by vote of a city council, 
or a commission or committee empowered by vote of a town, to erect a 
building in which public records were to be kept, be required to provide 
fireproof rooms, safes, or vaults for such records unless so instructed by 
said vote ? 

3. Would the erection of any of the above-mentioned buildings by com- 
missions or committees relieve the officers or boards, county commissioners, 
city councils, and selectmen of their duty to provide and maintain fireproof 
rooms, safes, or vaults, as required by chapter 35, section 18, of the Revised 
Laws? 

4. Would the members of a board of selectmen, who by vote of the town 
are members of a building committee, be relieved of their duty under said 
section 18, provided the majority of such committee had failed to make 
proper provision for the safety of the records ? 

Revised Laws, c. 35, § 18, provides: "Officers or boards in charge of a 
state department, county commissioners, city councils, and selectmen shall, 
at the expense of the commonwealth, county, city or town, respectively, 
provide and maintain fireproof rooms, safes or vaults for the safe keeping 
of the public records of their department, county, city or town, other than 
the records in the custody of teachers of the public schools, and shall furnish 
such rooms only with fittings of non-combustible materials." 

Revised Laws, c. 20, § 5, provides: "Each county except Suffolk shall 
provide suitable court-houses, jails, houses of correction, fireproof offices 



16 

and other necessary public buildings for the use of the county; but the 
county of Dukes County need not provide a house of correction/' 

Chapter 20, § 7: "The city of Boston shall provide the public buildings 
necessary for the use of the county of Suffolk and pay all county charges, 
except as hereinafter provided." 

Chapter 152, § 51: "County commissioners shall provide and maintain 
suitable rooms for the use of the probate courts, ample fireproof rooms and 
suitable alcoves, cases and boxes for the safe keeping of all records, files, 
papers and documents which belong to the several registries of probate, and 
shall provide all books which may be necessary for keeping the records, and 
all printed blanks and stationery which are used in probate proceedings. " 

1. I understand that the act of the Legislature which the commissioner 
has especially in mind is St. 1906, c. 534, which is "An Act to provide for an 
enlargement of or an addition to the court house in the county of Suffolk." 

This act provides in its first section for the appointment of a commission. 
Its second section provides that "Said commission, acting in behalf of the 
Commonwealth, shall employ an architect or architects and cause to be 
prepared plans for additional court room accommodations for the county of 
Suffolk, by adding stories upon the present building and providing therein 
court rooms and conveniences appurtenant thereto, sufficient for the needs 
of the courts and for the prompt administration of justice in said county," 
and that the commissioners shall "contract for the constructing, completing 
and furnishing such addition or enlargement of said building." 

This act does not specifically authorize the providing of places for the 
storing of public records. "Court rooms and conveniences appurtenant 
thereto" may well be interpreted to include places for the storage of the 
records of such courts, and in providing for such places the commission may 
provide that they be fireproof. 

The commission is not, however, required to provide fireproof rooms, 
etc. 

From the application of Revised Laws, c. 20, § 5, supra, the county of 
Suffolk is expressly excepted. 

St. 1906, c. 534, is, so far as an addition to the court house is concerned, 
a substitute for Revised Laws, c. 20, § 7. 

Revised Laws, c. 162, § 51, quoted supra, is limited in its application to 
county commissioners. The terms of Revised Laws, c. 35, § 18, quoted 
supra, do not include the commissioners appointed under the act of 1906. 

Statutes dealing with the same subjects are to be read together. The 
statutes above quoted clearly indicate an intention on the part of the Legis- 
lature that fireproof rooms, etc., be provided for public records, including 



17 

the records of courts, but they do not, in my opinion, impose upon the com- 
mission in question a duty to furnish such fireproof rooms, etc. 

In the absence of any indication to the contrary, the principle of interpre- 
tation here applied would be applicable in general to acts creating commis- 
sions to erect buildings in which public records are kept. 

2. The same principle is applicable in the case of votes by city councils 
and by towns. By Revised Laws, c. 35, § 18, the duty is imposed upon city 
councils to furnish fireproof rooms, etc. The natural intrepretation of a 
vote by a city council to erect a building in which public records should be 
kept would be that it was a vote in the carrying out of the provisions of this 
section. A commission acting under such a vote would, in my opinion, 
have authority to erect a building containing fireproof rooms, etc., so far as 
such fireproof rooms, etc., were part of the building. It cannot, however, 
be said that without definite instructions to that effect such a commission 
would be required to provide for fireproof rooms, etc. A vote by a town 
empowering a commission or committee to erect a building in which public 
records were to be kept would be interpreted in the same way. 

3 and 4. Clearly, no vote of city council or town could relieve the city 
council or the selectmen from the duties imposed upon them by Revised 
Laws, c. 35, § 18. 

An act of the Legislature could, of course, relieve officers of duties imposed 
upon them by this section. I am, however, of opinion that the passage of 
an act authorizing a commission to erect a building in which public records 
should be kept would not by implication relieve the officers upon whom the 
duty was imposed by Revised Laws, c. 35, § 18, of their obligation. Repeals 
by implication are not favored, and a clear intention to repeal this section 
must be shown in order to relieve the officers upon whom the duty of pro- 
viding fireproof rooms, etc., is imposed. 

Yours very truly, 

(Signed) Dana Malone, 

Attorney-General. 

Public Records. — Foreign Language. 
Henry E. Woods, Esq., Commissioner oj Public Records. 

Dear Sir: — In reply to your inquiry as to " whether or not a Register of 
Deeds within this Commonwealth is obliged under its laws to receive and 
record any instrument in a foreign language, even if the said instrument be 
accompanied by a translation/' I advise you that in my opinion a register of 
deeds is not obliged to receive and record any instrument in a foreign 
language, even though such instrument be accompanied by a translation. 



18 

The purpose of recording an instrument in the registry of deeds is to 
give notice of the contents thereof. It follows that the record must be such 
that a person examining it with a reasonable degree of care and intelligence 
may obtain actual notice of the facts recorded. Persons making such 
examinations cannot, in my opinion, reasonably be required to be familiar 
with languages other than English, which is the language used in the conduct 
of the affairs of the Commonwealth and in ordinary business transactions. 
Since the record must be in English, and since it must be an accurate copy 
of the instrument recorded, the instrument must be in English. The record 
of a translation of an instrument would not be in compliance with the 
statutes requiring the recording of such an instrument. Even if both an 
original instrument in a foreign language and a translation of it were re- 
corded, a person examining the record would have no assurance that the 
translation was accurate. 

Very truly yours, 

(Signed) Dana Malone, 

A ttorney-General. 




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